Lawyers fuel huge campaign to retain 3 justices

TALLAHASSEE — The three Florida Supreme Court justices had angered lawmakers and voters, embarrassed the high court and faced uncertain futures.

In 1975, Justices Joseph Boyd, Hal Dekle and David McCain were accused of giving behind-the-scenes favors to friends and writing opinions to benefit campaign contributors. Boyd eventually was reprimanded after lawmakers required he take and pass a mental exam. Dekle and McCain resigned to avoid impeachment.

The next year, voters passed a constitutional reform that allowed justices to be appointed by the governor and retained on an up-or-down vote every six years. The idea was to depoliticize the court, and most legal scholars think it worked.

But this year, the court has once again drawn the ire of lawmakers and become the focus of partisan attacks — not for alleged misdeeds but for alleged judicial overreach. Conservatives are targeting three justices facing merit retention, but trial lawyers have funded a $4 million-plus defense that's outspending the opposition 20-to-1.

And many of the biggest plaintiff firms writing checks have also argued cases before the court.

Conservative groups long annoyed with the court have argued that Justices Fred Lewis, Barbara Pariente and Peggy Quince — the only remaining appointees of Democratic ex-Gov. Lawton Chiles on the seven-member court — have shown a streak of liberal activism.

Americans for Prosperity, founded by billionaire oil magnates David and Charles Koch, produced an ad criticizing the court for removing an amendment opposing President Barack Obama's health-care plan from the 2010 ballot. (A rewrite is on the 2012 ballot.) Other opinions singled out included the 2006 case that invalidated Gov. Jeb Bush's "opportunity scholarship" school-voucher program.

But AFP put only $50,000 into a two-day television ad buy in five of Florida's 10 media markets — and has spent a total of $155,000 on the merit-retention fight.

"We have only focused on the cases as a whole and why we think they are activist," said Abigail MacIver, with Florida AFP. She said the judges' defenders "are only focused on the three justices, have basically refused to discuss a single court ruling and are accusing us of being political and spending millions against them."

Restore Justice 2012, the Orlando group that started criticizing the justices last year, has spent just $11,800 on signs. And though the Republican Party of Florida's executive board voted in September to oppose the justices, the party has put no cash into the fight.

"There's a fairly substantial fragment of the population that under no circumstances at all wants to vote for anything at all Democratic or related to Democrats. So they call and ask us about judges all the time," said Orange County GOP Chairman Lew Oliver. "This time we decided to take an official position."

But the effort has drawn a $4 million-and-growing response from the legal community, which has bought ads, hired public-relations firms and dispatched the justices to law schools and editorial boards from Tallahassee to Miami.

Collectively, they've called the campaign a "power grab" to give Republican Gov. Rick Scott three new seats to fill on the court.

Scott himself has refused to say how he will vote or whether he supported the state GOP decision. But he has criticized the court after losing cases before it and even directed state law enforcement to investigate the justices last spring after they used court employees to file their retention paperwork. Investigators determined no laws were broken.

"He is the RPOF. The reason he personally hasn't weighed in is obvious: People don't view him very favorably," said former Democratic state Chief Financial Officer Alex Sink, who has sent out mass emails urging support of the justices. Sink narrowly lost to Scott in 2010 and could run against him again in 2014.

"The effort to cast out judges based on some perceived ideology as opposed to their competence, that's very dangerous in terms of preserving the independence of the courts," Sink said.

Records show the group buying most of the ads, Defend Justice From Politics, had raised more than $2.5 million through October from a who's who of Florida's trial lawyers.

It banked $200,000 from Wayne Hogan's Jacksonville firm and $350,000 from two of the firms that led the "Dream Team" assembled in 1995 by then-Gov. Chiles that won an $11 billion settlement against Big Tobacco: the Pensacola firm of Fred Levin, whose name adorns the University of Florida's law college ($150,000), and West Palm Beach-based Searcy Denney Scarola Barnhart & Shipley ($200,000).

Other big contributors: Boca Raton-based Grossman Roth, $150,000; and $100,000 each from Jacksonville-based Pajcic & Pajcic and the firm of past Florida Justice Association President Tom Edwards, a Supreme Court appointee to several advisory boards.

All those firms have argued cases or filed briefs before the court since 2010.

The group also got $120,000 from America Votes, a progressive voter group founded by labor unions, trial lawyers, environmentalists and abortion-rights supporters. And the three justices themselves have raised nearly $1.4 million, mostly from lawyers.

"Most people have no contract with the court, and lawyers do, and they most understand the role of the court," said Dick Batchelor, a former Orlando Democratic lawmaker working for Defend Justice. "They are not partisan contributions. The court is not a partisan institution."

"We know this is unprecedented, and it is disappointing," Pariente said last month at an Orlando Sentinel Editorial Board meeting, about the fundraising by the justices and others.

But if the campaign against them works, she said, "we become a branch that rules based on what's popular at the time, not based on the laws and Constitution."